Carbajal v. State , 2014 Fla. App. LEXIS 15870 ( 2014 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
VINCENTE CARBAJAL, a/k/a )
VINCENTE EJIAS REYES-CARBAJAL, )
)
Appellant, )
)
v. ) Case No. 2D14-1756
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed October 10, 2014.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Hillsborough County; Michelle Sisco,
Judge.
VILLANTI, Judge.
Vincente Carbajal appeals an order dismissing as successive the second
of two timely filed motions for postconviction relief. Some of Carbajal's allegations are
ambiguous or facially insufficient; consequently, the files and records accompanying the
postconviction court's dismissal order do not fully support a conclusion that all of his
claims are successive. Because the postconviction court should have given Carbajal
one opportunity to amend his motion before dismissing it as successive, we affirm in
part, reverse in part, and remand for further proceedings.
In 2011, Carbajal entered a negotiated guilty plea to two counts of armed
kidnapping, one count of robbery with a firearm or deadly weapon, and one count of
carjacking with a firearm. He was sentenced to a combination of sentences totaling fifty
years in prison. This court affirmed Carbajal's convictions and sentences on direct
appeal. See Reyes-Carbajal v. State, 112 So. 3d 108 (Fla. 2d DCA 2013) (table
decision). Mandate issued on May 7, 2013.
On June 2, 2013, Carbajal filed a timely motion for postconviction relief
pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised three claims
regarding the filing of the information. The postconviction court found the claims to be
frivolous and denied the motion on July 11, 2013.
Subsequently, Carbajal filed a second rule 3.850 motion on January 30,
2014, raising eight claims for relief. Four of these claims made allegations of ineffective
assistance of counsel; three claims (claims one, two, and three) made allegations
concerning newly discovered evidence in the form of DNA test results; and one claim
made an allegation of cumulative error. The three claims concerning the newly
discovered DNA evidence did not contain an allegation as to when Carbajal learned of
the existence of this evidence. Nevertheless, the postconviction court dismissed this
motion in its entirety as successive.
Rule 3.850(h)(2) permits a court to dismiss a postconviction motion as
successive if it finds there was "no good cause for the failure of the defendant . . . to
have asserted those grounds in a prior motion." In dismissing the motion, the
postconviction court's order must be accompanied by "that portion of the files and
records necessary to support the court's ruling." Id. We recognize that "[t]he burden is
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on the movant to show extraordinary circumstances and good cause for having failed to
raise the 'new' claim in the prior motion." Morris v. State, 134 So. 3d 1066, 1067-68
(Fla. 4th DCA 2013). But if a movant's allegations are facially insufficient in this regard,
the postconviction court may not simply deny or dismiss the motion. Instead, the court
must afford the movant an opportunity to correct the deficiencies if he or she can do so
in good faith. See Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient on its face,
and the motion is timely filed under this rule, the court shall enter a nonfinal,
nonappealable order allowing the defendant 60 days to amend the motion."); Spera v.
State, 971 So. 2d 754, 761 (Fla. 2007).
Here, Carbajal did not allege in his second motion exactly when he
became aware of the allegedly new DNA evidence, other than that it was "subsequent
to the plea agreement, judgment and sentence." Without knowing when Carbajal
learned of this allegedly new evidence, it was simply not possible for the postconviction
court to determine that the motion was truly successive under rule 3.850(h)(2).
Accordingly, we reverse the dismissal of claims one, two, and three of Carbajal's
second motion for postconviction relief and remand for the postconviction court to give
him an opportunity to amend those claims with a good faith allegation concerning when
and how he learned of the existence of the allegedly exculpatory DNA test results. In all
other respects, we affirm the dismissal of the motion as successive.
Affirmed in part; reversed in part; remanded.
KHOUZAM and BLACK, JJ., Concur.
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